| People v Lewis |
| 2016 NY Slip Op 04504 [140 AD3d 1593] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert C. Lewis, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.),rendered June 3, 2013. The judgment convicted defendant, upon a jury verdict, of rape inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of rape in the first degree (Penal Law § 130.35 [2]). We rejectdefendant's contention that his right to be present during questioning of prospectivejurors at sidebar conferences regarding bias, hostility, or predisposition was violated(see generally People v Antommarchi, 80 NY2d 247, 250 [1992], reargdenied 81 NY2d 759 [1992]). It is well settled that a defendant's attorney may waivethat right, which is what occurred here (see generally People v Velasquez, 1 NY3d 44, 47-48[2003]). Contrary to defendant's contention, a court need not engage in any "proforma inquisition in each case on the off-chance that a defendant who is adequatelyrepresented by counsel . . . may nevertheless not know what he is doing"(People v Francis, 38 NY2d 150, 154 [1975]). Defendant failed to preserve forour review his contention that he was deprived of a fair trial based on impropercomments made by the prosecutor during voir dire (see generally People v Addison, 94 AD3d 1539, 1540[2012], lv denied 19 NY3d 994 [2012]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
We reject defendant's contention that County Court erred in refusing to suppress hisstatements to the police. Defendant's reliance on evidence introduced at trial in support ofhis contention is misplaced. It is well settled that "evidence subsequently admitted [at]trial cannot be used to support [or undermine] the determination of the suppression courtdenying [a] motion to suppress [an] oral confession; the propriety of the denial must bejudged on the evidence before the suppression court" (People v Gonzalez, 55NY2d 720, 721-722 [1981], rearg denied 55 NY2d 1038 [1982], cert denied456 US 1010 [1982]; see People v Carmona, 82 NY2d 603, 610 n 2 [1993]).Defendant's further contention that the evidence is legally insufficient to establish hisguilt is unpreserved for our review (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]) and, in any event, it lacks merit. Viewing theevidence in the light most favorable to the People, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid line ofreasoning and permissible inferences that could lead a rational person to the conclusionreached by the jury based on the evidence at trial, i.e., that defendant had sexualintercourse with the victim, who was incapable of consent by reason of being physicallyhelpless (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewingthe evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). "Issues withrespect to 'the credibility of prosecution witnesses concerning the voluntariness of theconfession were for the jury to decide, and there is no basis in the record to disturb thejury's resolution of those issues' " (People v Warney, 299 AD2d 956, 957[2002], lv denied 99 NY2d 633 [2003]).
[*2] We reject defendant's further contention that the courtfailed to comply with the procedures in CPL 310.30 with respect to a jury note (seePeople v O'Rama, 78 NY2d 270, 277-278 [1991]). The note at issue did not containa substantive inquiry and necessitated only the ministerial actions of sending certainexhibits into the jury room and thus did not implicate the procedures outlined inO'Rama (see People v Damiano, 87 NY2d 477, 487 [1996]). Defendantfailed to preserve for our review his contention that he was deprived of a fair trial byprosecutorial misconduct during summation because he failed to object to any of thealleged improprieties (seePeople v Lane, 106 AD3d 1478, 1480 [2013], lv denied 21 NY3d 1043[2013]; People v Rumph, 93AD3d 1346, 1347 [2012], lv denied 19 NY3d 967 [2012]). Although weconclude that defendant was not deprived of a fair trial by the prosecutor's comments, wetake this opportunity to emphasize that a prosecutor serves as an officer of the court and arepresentative of the People of the State (see generally People v Schaaff, 71AD2d 630, 631 [1979]). Here, the prosecutor engaged in inappropriate rhetoric which,although not warranting reversal, was inconsistent with the standards of conductexpected of prosecutors and all members of the bar. We thus admonish the prosecutor torefrain from using similar inflammatory rhetoric in future proceedings.
We reject defendant's contention that he was denied effective assistance of counsel.With respect to the alleged instances of prosecutorial misconduct, inasmuch as they werenot so egregious as to deprive defendant of a fair trial, defense counsel's failure to objectthereto did not deprive defendant of effective assistance of counsel (see People v Koonce, 111AD3d 1277, 1279 [2013]). Inasmuch as we have concluded that the evidence islegally sufficient to support the conviction, it cannot be said that defense counsel's failureto renew the motion for a trial order of dismissal constitutes ineffective assistance ofcounsel (see People vWashington, 60 AD3d 1454, 1454 [2009], lv denied 12 NY3d 922[2009]; see generally People v Baldi, 54 NY2d 137, 147 [1981]). Nor wascounsel ineffective because defendant did not testify at the Huntley hearing. Thedecision whether to testify belongs to the defendant (see generally People vFerguson, 67 NY2d 383, 390 [1986]). Defendant's remaining claims of ineffectiveassistance of counsel lack merit.
Defendant's contention that the amount of restitution ordered by the court is notsupported by the record "is not properly before this Court for review because [he] did notrequest a hearing to determine the [proper amount of restitution] or otherwise challengethe amount of the restitution order[ ] during the sentencing proceeding" (People v Butler, 70 AD3d1509, 1510 [2010], lv denied 14 NY3d 886 [2010] [internal quotation marksomitted]). In any event, that contention is without merit.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Carni, Lindley, Curran and Troutman, JJ.